IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,609
STATE OF KANSAS,
Appellee,
v.
LAFAYETTE D. E. COSBY,
Appellant.
SYLLABUS BY THE COURT
1. When reviewing a district court's decision regarding the suppression of an accused's statements, the factual underpinnings of the decision are reviewed for substantial competent evidence, but the ultimate legal decision drawn from those facts is reviewed de novo. An appellate court does not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
2. The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during a custodial interrogation and the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), requires law enforcement to inform suspects of these rights before statements, exculpatory or inculpatory, made in a custodial interrogation can be admitted against them; but Miranda's rules are procedural safeguards, not constitutional rights themselves. This court has recognized a public safety exception to the necessity of Miranda in situations where there is an immediate need for an officer to protect himself or herself or the public.
3. Under the facts of this case, we need not address whether it was error to admit post-Miranda responses to police questioning because we are convinced beyond a reasonable doubt that, even if erroneous, the admission was absolutely harmless.
4. It is constitutionally impermissible for the State to elicit evidence at trial of an accused's post-Miranda silence. A violation occurs when the State attempts to impeach a defendant's credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name, instead invoking the constitutional right to remain silent. This rule also applies when the State attempts to impeach a defendant's credibility by arguing that the invocation of his or her right to counsel evidences guilt.
5. Under the facts of this case, the prosecutor knowingly exceeded the scope of an earlier district court ruling and violated Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), when, in addition to clarifying why officers did not follow up on defendant's unsolicited statements, the prosecutor impeached defendant with his post-arrest silence.
6. When evaluating a prosecutorial misconduct claim, this court uses a two-step analysis to determine: (1) whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence; and (2) whether the remarks constitute plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial. The second step requires three factors to be considered: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors. None of these factors is individually controlling. Moreover, the third factor may not override the first two factors, unless both the Kansas statutory and federal constitutional harmless tests have been met.
7. In discussing premeditation, prosecutors must avoid forms of the word "instant" or any synonym conveying that premeditation can develop instantaneously. Under the facts of this case, the prosecutor's statement suggesting that premeditation could be instantaneous was outside the considerable latitude given a prosecutor in discussing the evidence.
8. The trial court has broad discretion in determining the use and extent of relevant evidence in rebuttal, and its ruling will not be ground for reversal absent an abuse of discretion that unduly prejudices the defendant. Generally, admission of rebuttal evidence intended to contradict facts put into evidence during the defense case is not error. Under the facts of this case, the district court did not abuse its discretion in admitting rebuttal testimony that contradicted defendant's testimony and related to the material issues of motive, plan, intent, and state of mind.
9. Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against a defendant.
10. Under the federal constitutional harmless error test, an error may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. In other words, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. This formulation of the federal harmless error rule is synonymous with that set forth by the United States Supreme Court in Fahy v. Connecticut, 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 84 S. Ct. 229 (1963) (quoted with approval in Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 [1967]), "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction."
Appeal from Douglas district court; JACK A. MURPHY, judge. Opinion filed November 9, 2007. Reversed and remanded.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Ann L. Smith, of Lenexa, argued the cause, and Charles Branson, county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: In the early morning hours of April 4, 2004, seven individuals witnessed defendant Lafayette Cosby fatally shoot Robert Martin. The contested issue at trial was whether defendant shot Martin while attempting to defend his friend, Alrick "Tin Tin" Johnson. In this appeal from his jury conviction of premeditated first-degree murder, defendant argues that the district judge erred by admitting a statement made after defendant invoked his right to speak with an attorney and in allowing the State to inform the jury that defendant had invoked that right. He also argues that the district judge erred by permitting the State to present testimony attacking defendant's character; that the prosecutor committed reversible misconduct by suggesting to the jury that premeditation can occur instantaneously; and that cumulative errors denied him a fair trial.
Factual and Procedural Background
The day before the crime began with celebration: Defendant and his roommate, Bouba Sembene, went to Kansas City, Missouri, to take part in a Senegal Independence Day event. Defendant made arrangements to meet Johnson back at the men's apartment in Lawrence later that night to have drinks and make music. Defendant also invited his downstairs neighbor, Vanessa Engelbert, and her friends, Andrea "Star" Garrison and Chad Davis.
When defendant and Sembeane returned to the apartment from Kansas City, Johnson was already there with his girlfriend, Brianna Moten. Mamadou Drame, a third roommate, arrived later. Garrison arrived at about 1 a.m. She received a call from Davis to meet her in the parking lot; Martin was with Davis. After a brief trip to see Martin's girlfriend, they entered defendant's apartment, where defendant greeted them. Engelbert then joined the gathering.
Martin had a reputation as a "drug dealer" and a history of violence. He had been using cocaine and marijuana earlier that evening. After Martin asked to use defendant's restroom, defendant showed Martin where it was located–in the back of the apartment between two bedrooms.
Johnson expressed concern to defendant about Martin. Martin was dating Johnson's foster sister, Kim Foster. Several months before, Martin and Foster had visited Johnson's house, and Johnson had witnessed them fighting. Ultimately, Johnson had refused to help Martin, and the police eventually took Martin to jail. This was the last time Johnson had seen Martin, and Johnson was worried Martin might want to settle a score with him.
Defendant, aware of this Johnson-Martin history, went to the back of the apartment and waited so that he could talk to Martin when he came out of the restroom. When Martin came out, he said to defendant, "You got to follow me around?" Defendant tried to explain that it was awkward for Martin to show up uninvited and that he was concerned that Martin did not like Johnson. Defendant wanted to be sure any problem Martin had with Johnson would not be revisited that night, but Martin was vague in his responses, saying there are always "repercussions" for actions.
Defendant testified that this conversation took place in the hallway of the apartment, but Davis testified that, when he went to check on the men, he saw them in the back bedroom, laughing; defendant was lying on the bed, and Martin was sitting on the floor.
The men rejoined the gathering in 15 to 20 minutes. Martin sat in a chair opposite the couch where Johnson, Moten, and Engelbert were sitting. After about 5 minutes, Martin went over to the couch and patted Johnson on the shoulder to get him to make room next to him. Martin then squeezed himself between Johnson and Engelbert on the couch. Johnson remembered that Martin then turned away and began talking to Davis and Garrison.
Defendant testified that he was watching Martin closely because he was still concerned about what Martin might do. He saw Martin fidgeting with his coat, and he testified that he saw a gun under the coat.
Upon seeing the gun, defendant went to a back bedroom and retrieved his own gun. He then went to the kitchen, from which he was able to watch Martin. Martin had turned toward Davis and Garrison and, defendant testified, he was manipulating the gun in his coat.
Garrison testified that Martin was using his hands as he was talking. Johnson, Engelbert, and Davis testified that they did not see Martin with a gun.
Johnson turned to say something to Moten, just as Martin turned toward Johnson; Defendant said he saw the barrel of Martin's gun sticking out from Martin's coat. Defendant came into the room and shot Martin. Martin fumbled with his coat, and defendant thought he was trying to get his gun to fire back. Defendant then shot Martin three more times.
When the shots were fired, most of the others ran outside. While running past defendant, Davis heard him say, "The mother fucker tried to kill me." Sembene ran back and hid in his room. He heard defendant telling Martin that Martin needed to accept Jesus.
Defendant heard Engelbert say she was calling the police, and he heard sirens. He stayed with Martin for 10 to 15 minutes, telling him police and an ambulance were on the way. Defendant then began to worry that Davis had called Martin's brother, and defendant did not want to be around if Martin's brother showed at the apartment. Defendant then left.
Johnson went back into the apartment to retrieve his backpack and then went to Davis' apartment. Engelbert, Moten, Garrison, and Davis went to Engelbert's apartment, two floors below, where they heard sirens. Davis then had Engelbert take him home, where they met Johnson. The group went back to Engelbert's apartment and were surprised that police were not there. Drame met them at Engelbert's, and the group went back to defendant's apartment upstairs to retrieve Garrison's cell phone and Moten's shoes. While they were there, they began picking up bottles and cleaning the apartment. Drame called police after everyone left.
Police did not recover a gun from Martin's body, from his coat, or from the scene; nor did police collect Martin's coat or test it for gun oil residue.
Defendant, meanwhile, walked around Lawrence, and, about daylight, threw his gun into a creek or pond. He eventually walked to a church in West Lawrence. After the service, he walked almost all the way to Topeka, where he was picked up by a passing motorist and dropped at the home of some friends. He stayed with those friends for a couple of hours and then walked around Topeka, until he was picked up by the Topeka police on the evening of April 5, 2005. The State's complaint, charging first-degree premeditated murder, was filed that day.
Detectives M.T. Brown, John Hanson, and Amy Jumisko of the Lawrence Police Department met with defendant in an interview room at the Topeka police station. After obtaining preliminary information, Brown gave defendant Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Defendant said he understood his rights. He also said he did not want to speak with the detectives and wanted to consult with a lawyer first. Brown then asked defendant where the gun was and if it was in a safe place. Defendant said that it was, and Brown did not ask any more questions. On the drive from Topeka to Lawrence, however, the defendant made comments and statements to law enforcement.
Defendant moved to suppress his statements. At the hearing on his motion, the State called Brown, who testified that when he met defendant in Topeka, he did not say the detectives were investigating a homicide. Brown said defendant was not restrained and he did not appear to be under the influence of drugs or alcohol. He also appeared to understand English and his rights. When asked whether he was willing to waive those rights and talk, defendant said he wanted to speak to a lawyer first. After defendant responded to Brown's question about the gun, Brown informed defendant that he was going to be transported to Lawrence. Defendant then volunteered: "I do want you to know this: I will say I didn't want this to happen. I will say that." Defendant declined to give a written statement at that time. This initial meeting had lasted roughly 20 minutes.
Jumisko testified that she observed, but did not participate in, the meeting between defendant and the two other detectives at the Topeka police station. She confirmed that defendant received Miranda warnings, asked for a lawyer, and then responded to Brown's question about the gun. She also testified that, during the trip to Lawrence, she and Hanson did not plan to ask any questions of defendant. However, after about 10 minutes of silence, defendant began to volunteer information and Jumisko got out a pen to record his comments. Throughout the drive, according to Jumisko, defendant was calm and polite.
According to Jumisko's notes, defendant said, "I am not a killer." Hanson responded, "But someone is dead." Defendant repeated, "I am not a killer," and then asked if police had "found the gun" on Martin. Hanson told defendant they could not discuss anything with him because he had asked for an attorney. After a short time, defendant asked, "How's [Martin's] family?" Hanson replied, "Not good."
Defendant made several more statements, punctuated by pauses, to which the police did not respond. He said, "I walked all the way to Topeka and a friend gave me the clothes and they knew the situation"; "Met a man walking on the street where I was arrested. We walked a long time and talked"; and "I went to a liquor store and got picked up on the very next block." Defendant said he planned to drink a bottle of wine before facing the charges, and said, "I went to church." Hanson then laughed and said, "We heard." Defendant replied, "I thought you would be waiting outside for me," and "A couple of cops passed me when I walked out of the church." Hanson told defendant that, if he wanted to explain the situation, he needed to talk to an attorney and then let the police know.
After more silence, defendant said, "Nobody knows what happened, just me and Rob." Then, after several minutes, defendant said, "Based on what they thought they saw, but not before." This statement was never clarified, and defendant said nothing else before he arrived at the Douglas County Jail.
The State argued at the suppression hearing that Brown's one question concerning the whereabouts of the gun after defendant received Miranda warnings and invoked his Fifth Amendment right to have counsel present during interrogation was permissible under a "public safety exception" recognized in New York v. Quarles, 467 U.S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984). Defendant's subsequent statements, the State asserted, were voluntary and unsolicited; no evidence suggested the comments were initiated by the officers, and the officers responded appropriately by reminding defendant they could not talk with him. Defendant attempted to distinguish Quarles, in which officers had asked defendant about a gun before giving Miranda warnings.
The district judge ruled that defendant's statements were admissible. Later, at a sidebar during trial, the judge affirmed this ruling and further ruled, over objection, that the witnesses could explain that their unwillingness to follow up on defendant's statements was attributable to defendant's invocation of his rights.
Pretrial, the State had filed a motion in limine to prevent defendant from introducing evidence of the victim's prior convictions, arguing character evidence about the victim was irrelevant because the defendant's claim of self-defense was not supported by the evidence. The State also argued that, even if evidence would justify a self-defense instruction, the victim's reputation for violence could only come into evidence through general opinion testimony, not through prior convictions or specific instances of conduct. At the hearing on the motion, defendant argued testimony about Martin's reputation in the community–including evidence that he had "stuck a shotgun" to someone's head, brandished guns in people's homes, "pistol-whipped" an individual, and was believed by the Lawrence police to be armed and dangerous–was relevant, material, and indispensable to the defense theory of the case. The district judge initially took the matter under advisement but eventually ruled that, because defendant pursued a defense-of-another theory, evidence of the character of the deceased was proper and could be shown by evidence of his general reputation in the community. The judge said specific instances of conduct would not be allowed unless they were incidents that occurred between defendant and victim. The court reserved a final ruling, though, because defendant had not yet actually claimed self-defense or defense of others as an affirmative defense to the charges.
At trial, the State proffered the testimony of Anthony Wisdom, who would testify that defendant had a long-held irrational belief Martin was trying to kill him. After some discussion, the district judge ruled the proffered testimony, though possibly relevant, was too remote and its probative value was outweighed by its risk of undue prejudice. The State renewed its proffer on at least one occasion, and the judge refused to change his ruling.
Defendant testified at length at trial, discussing his relationship with Martin. He knew Martin had recently served time in prison, believed Martin was dangerous and unpredictable, and had witnessed Martin turn on one of his own friends, beat him "to the ground," and then hug him. Defense counsel asked defendant, "What was going through your mind and what was your perception about why you acted or reacted the way that you did?" Defendant responded:
"The only way I can answer that question is to–is I can't answer your question unless you know Robert Martin. You just have to know who he is and have to know his lifestyle and have to know his personality . . . . It was him. It's who he was and that is why I reacted, you know, as far as his personality and as far as his character."
On cross-examination, the prosecutor asked defendant whether he believed Martin had been trying to hurt him for some time, and defendant said no. The prosecutor then asked, "Isn't it true that you believe, and you believed . . . that Robert Martin had been trying to kill you for five years?" Defendant answered, "That is absolutely false and I am sorry that you even said that to the jury." Defense counsel objected, and the district judge overruled the objection. Further, the judge permitted the State to question defendant about Wisdom's proffered testimony, portions of which defendant denied.
The State then called Wisdom as a rebuttal witness. He testified that he, Martin, and defendant had all been good friends for 10 or 11 years. Five years earlier, he and defendant had eaten hallucinogenic mushrooms and were working on music when Martin stopped by; the three talked about getting more mushrooms. Suddenly, defendant demanded that Wisdom take him home. When Wisdom dropped defendant off, defendant accused Wisdom and Martin of trying to kill him. Wisdom testified that he talked to defendant a number of times over the next few years about the accusation; defendant remained convinced Martin "had tried to kill him" and was still trying to kill him. Defendant, according to Wisdom, believed Martin was "the devil" or had the devil "in him."
During closing argument, while discussing the element of premeditation, the prosecutor told the jury:
"[Y]ou all might have your own ideas about that [legal concept, but] this is what the law tells you. 'Premeditation: To have thought over the matter beforehand.' So it's not an intricate plan and you don't have to find that Lafayette Cosby planned to kill Robert Martin prior to Robert Martin getting there that night. You don't have to find that Lafayette Cosby planned to kill Robert Martin prior to going back to the room to get his gun. You just have to find that he thought it over beforehand, even if that was instantaneous."
The defense immediately objected. The judge sustained the objection but also said, "[T]hat is for the jury to decide." The prosecutor then repeated the correct definition of premeditation as "thinking the matter over beforehand."
Admission of Defendant's Statement About Gun
The defendant argues that the district judge erred by admitting defendant's statement that the gun was in a safe place. In his view, Brown's question about the whereabouts of the gun, which followed defendant's invocation of his Miranda rights was not excused by a Quarles' public safety exception because there were no exigent circumstances and Quarles applies only to pre-Miranda statements.
The parties set forth slightly different standards of review on this issue. The State suggests that, when a district court has conducted a full hearing on the admissibility of a statement and determines that it was freely, voluntarily, and intelligently made, this court should uphold the determination if there is substantial competent evidence to support it.
This standard is incomplete. First, the district court did not admit the statement because it was freely, voluntarily, and intelligently made. It admitted the statement because it determined that "there was a legitimate concern for public safety that fit the Quarles scenario."
Defendant is correct that, when reviewing a district judge's suppression decision on an accused's statements, the factual underpinnings of the decision are reviewed for substantial competent evidence, but the ultimate legal decision drawn from those facts is reviewed de novo. State v. Mattox, 280 Kan. 473, 480, 124 P.3d 6 (2005); State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003). We do not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).
The district judge found that Brown considered it dangerous that the gun used in the homicide had not been located. Defendant had walked throughout Lawrence and Topeka, and the gun could have been anywhere, meaning a child might find it and more people could be harmed. The district judge regarded the concern as reasonable, and, although it would have made more sense for Brown to ask defendant about the gun before Miranda warnings were given, the judge did not "see anything or know of any cases that indicate that the sequence has to be a certain order. . . . I have some concern with the time gap . . . [but it] is not an issue that the court can consider as long as there was a legitimate concern for public safety." There is substantial evidence in the record to support the district court's findings of fact about Brown's worry over the gun, but the ultimate legal question of whether a public safety exception applies requires our independent review. See Mattox, 280 Kan. at 480.
The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during a custodial interrogation and the right to remain silent. U.S. Const. amend V; Miranda, 384 U.S. at 479. Miranda requires law enforcement to inform suspects of these rights before statements, exculpatory or inculpatory, made in a custodial interrogation can be admitted against them; Miranda, 384 U.S. at 444; but Miranda's rules are procedural safeguards; they are not constitutional rights themselves. Michigan v. Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974).
In Quarles, 467 U.S. 649, the United States Supreme Court recognized an exception to Miranda in situations involving a threat to public safety. In that case, a woman reported that she had just been raped by an armed man who had escaped into a supermarket. The officers apprehended a suspect, noticing he had an empty shoulder holster. Without first advising him of his rights, an officer asked the suspect where the gun was. The suspect directed police to the gun behind some nearby empty cartons, and the statement was admissible because the need to ascertain the location of a potential danger to the public outweighed the need for the "prophylactic rule" of Miranda. Quarles, 467 U.S. at 657.
Our courts have recognized the public safety exception expressed in Quarles and have applied it in pre-Miranda situations where there is an immediate need for an officer to protect himself or herself or the public. For example, in State v. McKessor, 246 Kan. 1, 7, 785 P.2d 1332, cert. denied 495 U.S. 937 (1990), we determined that a gun seized during a valid warrantless arrest of defendant in his motel room was admissible under the public safety exception, where police officers had asked the defendant about the location of the gun before reading him the Miranda warnings. In that case, officers had reason to believe that the defendant was armed, that an accomplice was in the bathroom, and that adjoining motel rooms were occupied. Public safety demanded determination, without delay, of the location of any weapons in the room.
We have applied the public safety exception in other pre-Miranda situations as well. See State v. Drennan, 278 Kan. 704, 722-724, 101 P.3d 1218 (2004) (where officers had reasonable belief potential victim might be in danger, in need of assistance, officers justified in asking suspect about victim's whereabouts before reading suspect Miranda rights); State v. Bailey, 256 Kan. 872, 880, 889 P.2d 738 (1995) (officer's question about whereabouts of gun occurred after high-speed chase, report defendant was suspect in shooting; question fell within "public safety" exception); see also State v. Ewing, 258 Kan. 398, 404, 904 P.2d 962 (1995) (declining to discuss "persuasive" argument that public safety exception applied to pre-Miranda questioning where error in admission of statement harmless).
Once the right to have counsel present during interrogation has been invoked, the courts impose a relatively rigid requirement that interrogation must cease. Questioning can be resumed only after a lawyer has been made available or the suspect reinitiates conversation. Edwards v. Arizona, 451 U.S. 447, 482, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); State v. Henry, 273 Kan. 608, 613, 44 P.3d 466 (2002). This rule provides a second layer of prophylaxis for the Miranda right to counsel, designed to prevent police from badgering a defendant into waiving previously asserted rights. Michigan v. Harvey, 494 U.S. 344, 350, 108 L. Ed. 2d 293, 110 S. Ct. 1176 (1990); Mattox, 280 Kan. at 481; State v. Walker, 276 Kan. 939, 944-46, 80 P.3d 1132 (2003).
Here, it is undisputed that defendant was in custody at the time his challenged statement was made; his invocation was clear and unambiguous; and he did not waive his asserted right to counsel by responding to Brown's question concerning the whereabouts of the gun. A valid waiver of a previously asserted right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation, even if the suspect has been advised of his rights. Edwards, 451 U.S. at 484. The question that remains is one of first impression in Kansas: Can an officer's response-provoking question meet the public safety exception expressed in Quarles and applied in McKessor if it is posed after Miranda warnings are given and after defendant invoked the right to have an attorney present during questioning?
There is a split of authority on this issue. See United States v. Mobley, 40 F.3d 688, 692 (4th Cir. 1994), cert. denied 514 U.S. 1129 (1995) (public safety exception applies both before, after administration of Miranda warnings, right to counsel is invoked; however, absent circumstances posing objective immediate danger to public, police, need for exception not apparent; suspicion questioner on fishing expedition outweighs belief public safety motivated otherwise improper questioning); United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989) (even if accused has been advised of rights and invoked those rights, public safety exception applies with equal force as long as there remains objectively reasonable need to protect officers, public from immediate danger associated with weapon); Trice v. United States, 662 A.2d 891, 894-97 (D.C. 1995) (detective's question after defendant's assertion of right to counsel